With its modem rebirth in Filartiga v. Pena-Irala, the Alien Tort Statute (ATS) held out a potentially transformative promise. By establishing a forum in the United States for a victim of torture that had occurred at the hands of a Paraguayan police inspector in Paraguay, the ATS offered to emancipate the state-centered Westphalian system from a narrow focus on territorial sovereignty, and move toward a more globalized community focused on the protection of universal values. The ATS recognized that modem human rights perpetrators, victims, and violations move easily across borders, and that transnational accountability for such violations is in the common interest of all humanity. "The torturer," as the inaugural opinion in Filartiga put it, "has become – like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind."
The Supreme Court's recent decision in Kiobel v. Royal Dutch Petroleum dashed that broadest utopian vision. In asserting that causes of action under the ATS are limited by the domestic law presumption against extraterritorial application of statutes, Chief Justice John Roberts appeared to firmly reassert a highly traditionalist view of the integrity of sovereign territorial states. It was also a vision that isolated the United States in the international system since, despite extensive briefing of international law issues, the opinion rested entirely on principles of U.S. domestic statutory interpretation. Ironically, the case arose from the activities of a multinational corporate conglomerate – Royal Dutch Petroleum, a company domiciled in the United Kingdom and the Netherlands, but with a global reach, including the Nigerian activities at issue in Kiobel.
Jurisdiction | Law | Transnational Law
Sarah H. Cleveland,
The Kiobel Presumption and Extraterritoriality,
Colum. J. Transnat'l L.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3249